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Academic Freedom
From Professional Norm to First Amendment Right
David M. Rabban
Harvard University Press, 2024

A definitive interpretation of academic freedom as a First Amendment right, drawing on a comprehensive survey of legal cases.

Is academic freedom a First Amendment right? Many think so, yet its relationship to free speech as guaranteed by the Constitution is anything but straightforward. David Rabban examines the extensive case law addressing academic freedom and free speech at American universities, developing a robust theory of academic freedom as a distinctive subset of First Amendment law.

In subsuming academic freedom under the First Amendment, Rabban emphasizes the societal value of the contribution to knowledge made by the expert speech of professors, the classic justification for academic freedom in the influential 1915 Declaration of the American Association of University Professors (AAUP). Any indication that professors might be disciplined because people without academic training disagree with their scholarly views would undermine confidence in the integrity of their work and therefore their ability to perform this vital function on behalf of the public. Rabban argues that academic freedom fosters two central First Amendment values recognized by courts in a wide range of contexts: the production and dissemination of knowledge and the contribution of free expression to democratic citizenship.

The First Amendment right of academic freedom applies most directly to professors, but it also plausibly extends to the educational decisions of universities and to students’ learning interests. More broadly, this vision of academic freedom can guide in developing additional distinctive First Amendment rights to protect the expert expression of journalists, librarians, museum curators, and other professionals. At a time when academic freedom is under attack from many directions, Academic Freedom proposes a theoretically satisfying and practically useful guide to its meaning as a First Amendment right.

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Air Wars
Fight To Reclaim Public Broadcasting
Jerold Starr
Temple University Press, 2001
A riveting narrative of the price of politics, money, and ambition, and an inspirational account of how ordinary people can prevail over powerful interests, Air Wars tells how a grassroots movement of concerned citizens at WQED in Pittsburgh was able to overcome enormous institutional influence in their quest for public accountability.

These citizens believed strongly in public television's unique mission to serve the diverse social and cultural needs of local communities. When their own station neglected this mission in the search for national prestige and bigger revenues, they felt profoundly betrayed.

Jerold Starr exposes the political and commercial pressures that made strange bedfellows of the top officials of public broadcasting, the Democratic Party establishment, Pat Robertson and the Christian Coalition, home-shopping and "infomall" king Lowell "Bud" Paxson, and billionaire right-wing publisher/philanthropist Richard Mellon Scaife.

What began as a bitterly contested local struggle that disturbed the serenity of Mister Rogers' Neighborhood later became front-page national news with revelations of presidential candidate John McCain's influence-peddling scandal on behalf of media mogul Paxson. This was followed by congressional resolutions attacking the FCC's authority to regulate noncommercial educational broadcast licenses. The "Pittsburgh case" promises to be in the news for some time to come.

Far beyond Pittsburgh, Starr looks at how the reform movement has spread to major cities like Chicago, Phoenix, Jacksonville, and San Francisco, where citizen activists have successfully challenged public stations to be more community responsive.

Finally, he outlines an innovative plan for restructuring the public broadcasting service as an independently funded public trust. Joining this vision with a practical strategy, Starr describes the formation of Citizens for Independent Public Broadcasting, a national membership organization with a grassroots approach to putting the public back into public broadcasting.
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Beyond the Schoolhouse Gate
Free Speech and the Inculcation of Values
Robert Wheeler Lane
Temple University Press, 1995
Outstanding Academic Title, Choice, 1995 "What makes Lane's approach unique is that he weaves together different perspectives on the nature of school into a very colorful but informative and lucid tapestry that seeks the outer limits of free expression within the boundaries of the school context, always with an eye toward promoting the goal of inculcation of values, a worthy end for students and school officials alike." --Samuel M. Davis, Allen Post Professor of Law, University of Georgia *In a 1969 landmark case, the U.S. Supreme Court ruled that the suspension of student for protesting the Vietnam War violated the First Amendment. *In 1972, the U.S. court of appeals upheld the suspension of black high school students for protesting the playing of "Dixie" at a pep rally. *In 1986, a U.S. district court ruled that the suspension of a student for directing a vulgar gesture at one of his school teachers in a fast-food restaurant was unconstitutional. On what grounds do public school students merit First Amendment protection? These three examples illustrate the broad range of litigation that has attempted to answer this question. Robert Wheeler Lane reviews the obstacles of this important issue and suggests a mix of protection and autonomy for students. Pulling together evidence about the aims of public education, the changing legal status of children, and the values underlying freedom of expression, Lane debates the relationship between constitutional litigation and the dual pursuits of academic excellence and classroom order. Ultimately, utilizing both lower court and Supreme Court decisions, he finds that independent student expression deserves considerable constitutional protection; student expression assisted by school officials (such as school-funded student newspapers) should be subject to some control; and nonstudent expression (such as a school's selection of library books) should be left largely to the school's discretion. His conclusions suggest that in forging First Amendment protection for public school students, strongly held positions need not be extreme.
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Bong Hits 4 Jesus
A Perfect Constitutional Storm in Alaska's Capital
James C. Foster
University of Alaska Press, 2010

In January 2002, for the first time, the Olympic Torch Relay visited Alaska on its way to the Winter Games. When the relay runner and accompanying camera cars passed Juneau-Douglas High School, senior Joseph Frederick and several friends unfurled a fourteen-foot banner reading "BONG HiTS 4 JESUS."

An in-depth look at student rights within a public high school, this book chronicles the events that followed: Frederick's suspension, the subsequent suit against the school district, and, ultimately, the escalation of a local conflict into a federal case. Brought to life through interviews with the principal figures in the case, Bong Hits 4 Jesus is a gripping tale of the boundaries of free speech in an American high school.

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Brandishing the First Amendment
Commercial Expression in America
Tamara R. Piety
University of Michigan Press, 2013

Tamara R. Piety argues that increasingly expansive First Amendment protections for commercial speech imperil public health, safety, and welfare; the reliability of commercial and consumer information; the stability of financial markets; and the global environment. Using evidence from public relations and marketing, behavioral economics, psychology, and cognitive studies, she shows how overly permissive extensions of protections to commercial expression limit governmental power to address a broad range of public policy issues.

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Broadcasting, Voice, and Accountability
A Public Interest Approach to Policy, Law, and Regulation
Steve Buckley, Kreszentia Duer, Toby Mendel, and Seán Ó Siochrú
University of Michigan Press, 2008
Participatory development and government accountability depend in part on the existence of media that provide broad access to information from varied sources and that equip and encourage people to raise and debate issues and develop public opinion. Conducive policies, laws, and regulations are essential for media to develop that are independent and widely accessible and that enable the expression of diverse perspectives and sources of information. Broadcasting, Voice, and Accountability presents a framework to inform analysis of existing policies and support the development of a vigorous media sector, with a particular emphasis on broadcasting. It focuses on broadcasting because that is the medium with the greatest potential to reach and involve society at large, including the most disadvantaged and illiterate segments of society in developing countries. Information on good practices in broadcasting policy is in demand in countries of every region—particularly in countries that are opening their economies, democratizing, and decentralizing public service delivery.
This book provides development practitioners with a wide overview of the key policy and regulatory issues involved in supporting freedom of information and expression and enabling development of a pluralistic, independent, and robust broadcasting sector. Policy, regulation, capacity, and institutional development are important development levers that shape the ownership, content, and social impacts of broadcasting systems. The guide shows the importance of enabling a mix of ownership and uses, commonly classified in terms of commercial, public service, and community broadcasting, that serves the public interest. With the guidance of this book, broadcasting policy and regulation can be tackled as a mainstream development topic, with important consequences for government transparency, government accountability, and enabling disadvantaged constituencies to voice their concerns and press for action.
This book is the World Bank's first publication presenting good practices from around the world in media and broadcasting policy and regulation and complements existing work in governance, public sector reform, and access to information. It is a useful tool for policymakers, reform managers, development practitioners, and students alike.
"Most books on the state of broadcasting in the third world tend either to lament the lack of governance, accountability and competence, or to speak down to their readers. This book is part of a new generation that acknowledges ability and a willingness to move forward into the twenty-first century with integrity and imagination. It is not patronizing, and it is certainly not boring. It focuses on really useful approaches to setting up, sustaining, and governing broadcasting systems across the world. This is an excellent book whose combination of sound scholarship and intelligent advice will be welcomed by policymakers and broadcasters alike. It is relevant, interesting, and a jolly good read."
---Ruth Teer-Tomaselli, UNESCO Chair in Communication for Southern Africa, Culture, Communication and Media Studies, University of KwaZulu-Natal

digitalculturebooks is an imprint of the University of Michigan Press and the Scholarly Publishing Office of the University of Michigan Library dedicated to publishing innovative and accessible work exploring new media and their impact on society, culture, and scholarly communication. Visit the website at www.digitalculture.org.

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Cancel Wars
How Universities Can Foster Free Speech, Promote Inclusion, and Renew Democracy
Sigal R. Ben-Porath
University of Chicago Press, 2023
An even-handed exploration of the polarized state of campus politics that suggests ways for schools and universities to encourage discourse across difference. 

College campuses have become flashpoints of the current culture war and, consequently, much ink has been spilled over the relationship between universities and the cultivation or coddling of young American minds. Philosopher Sigal R. Ben-Porath takes head-on arguments that infantilize students who speak out against violent and racist discourse on campus or rehash interpretations of the First Amendment. Ben-Porath sets out to demonstrate the role of the university in American society and, specifically, how it can model free speech in ways that promote democratic ideals.

In Cancel Wars, she argues that the escalating struggles over “cancel culture,” “safe spaces,” and free speech on campus are a manifestation of broader democratic erosion in the United States. At the same time, she takes a nuanced approach to the legitimate claims of harm put forward by those who are targeted by hate speech. Ben-Porath’s focus on the boundaries of acceptable speech (and on the disproportional impact that hate speech has on marginalized groups) sheds light on the responsibility of institutions to respond to extreme speech in ways that proactively establish conversations across difference. Establishing these conversations has profound implications for political discourse beyond the boundaries of collegiate institutions. If we can draw on the truth, expertise, and reliable sources of information that are within the work of academic institutions, we might harness the shared construction of knowledge that takes place at schools, colleges, and universities against truth decay. Of interest to teachers and school leaders, this book shows that by expanding and disseminating knowledge, universities can help rekindle the civic trust that is necessary for revitalizing democracy.
 
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Censorship in Vietnam
Brave New World
Thomas A. Bass
University of Massachusetts Press, 2017
What does censorship do to a culture? How do censors justify their work? What are the mechanisms by which censorship—and self-censorship—alter people's sense of time and memory, truth and reality? Thomas Bass faced these questions when The Spy Who Loved Us, his account of the famous Time magazine journalist and double agent Pham Xuan An, was published in a Vietnamese edition. When the book finally appeared in 2014, after five years of negotiations with Vietnamese censors, more than four hundred passages had been altered or cut from the text.

After the book was published, Bass flew to Vietnam to meet his censors, at least the half dozen who would speak with him. In Censorship in Vietnam, he describes these meetings and examines how censorship works, both in Vietnam and elsewhere in the world. An exemplary piece of investigative reporting, Censorship in Vietnam opens a window into the country today and shows us the precarious nature of intellectual freedom in a world governed by suppression.
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Confessions of a Presidential Speechwriter
Craig R. Smith
Michigan State University Press, 2014
An avid high school debater and enthusiastic student body president, Craig Smith seemed destined for a life in public service from an early age. As a sought-after speechwriter, Smith had a front-row seat at some of the most important events of the twentieth century, meeting with Robert Kennedy and Richard Nixon, advising Governor Ronald Reagan, writing for President Ford, serving as a campaign manager for a major U.S. senator’s reelection campaign, and writing speeches for a contender for the Republican nomination for president. Life in the volatile world of politics wasn’t always easy, however, and as a closeted gay man, Smith struggled to reconcile his private and professional lives. In this revealing memoir, Smith sheds light on what it takes to make it as a speechwriter in a field where the only constant is change. While bouncing in and out of the academic world, Smith transitions from consultantships with George H. W. Bush and the Republican caucus of the U.S. Senate to a position with Chrysler CEO Lee Iacocca. When Smith returns to Washington, D.C., as president and founder of the Freedom of Expression Foundation, he becomes a leading player on First Amendment issues in the nation’s capital. Returning at long last to academia, Smith finds happiness coming out of the closet and reaping the benefits of a dedicated and highly successful career.
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The Constitution, the Law, and Freedom of Expression
1787-1987
James Brewer Stewart
Southern Illinois University Press, 1987

In recognition of the bicentennial of the Constitution of the United States, former chief justice Warren E. Burger, Justice Antonin Scalia, ACLU president Norman Dorsen, and others delivered papers at the first annual DeWitt Wallace Conference on the Liberal Arts, held at Macalester College, St. Paul.

Joining some of the best legal minds in America were novelist John Edgar Wideman, chemist Harry B. Gray, historian Mary Beth Norton, and psychiatrist and social psychologist Robert Jay Lifton.

Opening the conference and this book, former chief Justice Burger emphasizes the daring of those who drafted the Constitution. Justice Scalia, noting the great reduction in curbs to freedom of expression since World War I, points out that the proliferation of freedom has forced courts to distinguish between types of expression.

Although the views expressed in these essays differ widely, opinion concerning the major issue falls into two definite camps: Burger, Scalia, and Dorsen contend that freedom of expression depends on the legal structure for survival; Wideman, Gray, Lifton, and Norton maintain that social forces determine freedom of expression.

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Dangerous Ideas on Campus
Sex, Conspiracy, and Academic Freedom in the Age of JFK
Matthew C. Ehrlich
University of Illinois Press, 2021

In 1960, University of Illinois professor Leo Koch wrote a public letter condoning premarital sex. He was fired. Four years later, a professor named Revilo Oliver made white supremacist remarks and claimed there was a massive communist conspiracy. He kept his job.

Matthew Ehrlich revisits the Koch and Oliver cases to look at free speech, the legacy of the 1960s, and debates over sex and politics on campus. The different treatment of the two men marked a fundamental shift in the understanding of academic freedom. Their cases also embodied the stark divide over beliefs and values--a divide that remains today. Ehrlich delves into the issues behind these academic controversies and places the events in the context of a time rarely associated with dissent, but in fact a harbinger of the social and political upheavals to come.

An enlightening and entertaining history, Dangerous Ideas on Campus illuminates how the university became a battleground for debating America's hot-button issues.

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Defending the Masses
A Progressive Lawyer's Battles for Free Speech
Eric B. Easton
University of Wisconsin Press, 2018
Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.

Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin's progressive senator Robert La Follette since their law partnership as young men, Roe defended "Fighting Bob" when the Senate tried to expel him for opposing America's entry into World War I.

In articulating and upholding Americans' fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.
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Democracy’s Prisoner
Eugene V. Debs, the Great War, and the Right to Dissent
Ernest Freeberg
Harvard University Press, 2010

In 1920, socialist leader Eugene V. Debs ran for president while serving a ten-year jail term for speaking against America’s role in World War I. Though many called Debs a traitor, others praised him as a prisoner of conscience, a martyr to the cause of free speech. Nearly a million Americans agreed, voting for a man whom the government had branded an enemy to his country.

In a beautifully crafted narrative, Ernest Freeberg shows that the campaign to send Debs from an Atlanta jailhouse to the White House was part of a wider national debate over the right to free speech in wartime. Debs was one of thousands of Americans arrested for speaking his mind during the war, while government censors were silencing dozens of newspapers and magazines. When peace was restored, however, a nationwide protest was unleashed against the government’s repression, demanding amnesty for Debs and his fellow political prisoners. Led by a coalition of the country’s most important intellectuals, writers, and labor leaders, this protest not only liberated Debs, but also launched the American Civil Liberties Union and changed the course of free speech in wartime.

The Debs case illuminates our own struggle to define the boundaries of permissible dissent as we continue to balance the right of free speech with the demands of national security. In this memorable story of democracy on trial, Freeberg excavates an extraordinary episode in the history of one of America’s most prized ideals.

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Desert Water
The Future of Utah's Water Resources
Hal Crimmel
University of Utah Press, 2014
Hal Crimmel has brought the findings of science together with the experienced voices of environmental social scientists, humanists, and activists to provide perspective on Utah water issues. The matters discussed are relevant beyond this one state, as similar conditions and concerns, especially over supply and demand in the face of demographic and climate change, exist throughout the West. Some of the essays are scientific and analytical; others literary and personal. Together they draw attention to problems that Utah residents and policy makers must address but also emphasize ways to build solutions. Desert Water will help citizens, policy makers, and anyone interested in Utah’s water supply and use—as everyone in the state should be—understand the real challengesand ethicsinvolved in managing this vital, finite resource. By awareness, these essays should create a sense of urgency for finding workable solutions. 
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Dirty Words and Filthy Pictures
Film and the First Amendment
By Jeremy Geltzer
University of Texas Press, 2015

From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracle decision in 1952, new problems pushed notions of acceptable content even further.

Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.

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"Discourse and Truth" and "Parresia"
Michel Foucault
University of Chicago Press, 2019
This volume collects a series of lectures given by the renowned French thinker Michel Foucault late in his career. The book is composed of two parts: a talk, Parrēsia, delivered at the University of Grenoble in 1982, and a series of lectures entitled “Discourse and Truth,” given at the University of California, Berkeley in 1983, which appears here for the first time in its full and correct form. Together, they provide an unprecedented account of Foucault’s reading of the Greek concept of parrēsia, often translated as “truth-telling” or “frank speech.” The lectures trace the transformation of this concept across Greek, Roman, and early Christian thought, from its origins in pre-Socratic Greece to its role as a central element of the relationship between teacher and student. In mapping the concept’s history, Foucault’s concern is not to advocate for free speech; rather, his aim is to explore the moral and political position one must occupy in order to take the risk to speak truthfully.

These lectures—carefully edited and including notes and introductory material to fully illuminate Foucault’s insights—are a major addition to Foucault’s English language corpus.
 
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Emma Goldman
A Documentary History of the American Years, Volume 1: Made for America, 1890-1901
Emma Goldman. Edited by Candace Falk; Barry Pateman, Assoc Ed; Jessica Moran, A
University of Illinois Press, 2007

Emma Goldman: A Documentary History of the American Years reconstructs the life of Emma Goldman through significant texts and documents. These volumes collect personal letters, lecture notes, newspaper articles, court transcripts, government surveillance reports, and numerous other documents, many of which appear here in English for the first time. Supplemented with thorough annotations, multiple appendixes, and detailed chronologies, the texts bring to life the memory of this singular, pivotal figure in American and European radical history.

Volume 1: Made for America, 1890-1901 introduces readers to the young Emma Goldman as she begins her association with the international anarchist movement and especially with the German, Jewish, and Italian immigrant radicals in New York City. From early on, Goldman's movement through political and intellectual circles is marked by violence, from the attempted murder of industrialist Henry Clay Frick by Goldman's lover, Alexander Berkman, to the assassination of President William McKinley, in which Goldman was falsely implicated. The documents surrounding these events illuminate Goldman's struggle to balance anarchism's positive gains and its destructive costs. This volume introduces many of the themes that would pervade much of Goldman's later writings and speeches: the untold possibilities of anarchism; the transformative power of literature; the interplay of human relationships; and the importance of free speech, education, labor, women's freedom, and radical social reform.

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Eternally Vigilant
Free Speech in the Modern Era
Edited by Lee C. Bollinger and Geoffrey R. Stone
University of Chicago Press, 2001
While freedom of speech has been guaranteed us for centuries, the First Amendment as we know it today is largely a creation of the past eighty years. Eternally Vigilant brings together a group of distinguished legal scholars to reflect boldly on its past, its present shape, and what forms our understanding of it might take in the future. The result is a unique volume spanning the entire spectrum of First Amendment issues, from its philosophical underpinnings to specific issues like campaign regulation, obscenity, and the new media.

"With group efforts, such as this collection of essays, it is almost inevitable that there will be a couple—and often several—duds among the bunch, or at least a dismaying repetition of ideas. Such is not the case here. . . . Whether one agrees with a given author or not (and it is possible to do both with any of the essays), each has something to add. Overall, Eternally Vigilant is a thoughtful and thought-provoking book, consistently intelligent and, at times, brilliant."—Richard J. Mollot, New York Law Journal

Contributors:

Lillian R. BeVier
Vincent Blasi
Lee C. Bollinger
Stanley Fish
Owen M. Fiss
R. Kent Greenawalt
Richard A. Posner
Robert C. Post
Frederick Schauer
Geoffrey R. Stone
David A. Strauss
Cass R. Sunstein
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Fear and the First Amendment
Controversial Cases of the Roberts Court
Kevin A. Johnson and Craig R. Smith
University of Alabama Press, 2024
A highly original account of the role that fear plays in key First Amendment cases ruled on by the Roberts Supreme Court

In Fear and the First Amendment, Kevin A. Johnson and Craig R. Smith offer a deeply considered examination of the ways fear figures in First Amendment questions ruled on by the contemporary Supreme Court. Bringing together literature on theories of fear in rhetorical and philosophical traditions, Johnson and Smith focus on the rulings from the Roberts Court, which form a pivotal era of dramatic precedents. Each chapter in this book analyzes one or more First Amendment cases and a variety of related fears—whether evidentiary or not—that pertain to a given case.

These cases include Morse v. Frederick, which takes up the competing fears of school administrators’ loss of authority and students’ loss of free speech rights. The authors touch on corporate funding of elections in Citizens United v. Federal Elections Commission, from the fear of corporate influence on electoral politics to corporate fears of alienating their consumers by backing political candidates. They explore religious freedom and fears of homosexuality in Christian Legal Society v. Martinez. Similarly, in Snyder v. Phelps, the authors delve further into fears of God, death, emotional distress, failing as a parent, and losing one’s reputation. Next, they investigate parents’ anxieties about violence in video games in Brown v. Entertainment Merchants Association. Finally, Johnson and Smith examine the role of fear in indecent, obscene, and graphic communication in three cases: FCC v. Fox Television Stations, Ashcroft v. American Civil Liberties Union, and United States v. Stevens.

Together these cases reveal fear to be an endemic factor in the rhetoric of First Amendment cases. This fascinating and original work will appeal to current legal practitioners and students of law, rhetoric, philosophy, and the First Amendment.
 
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The First Amendment, Democracy, and Romance
Steven Shiffrin
Harvard University Press, 1990

Ralph Waldo Emerson celebrated the individualism, rebelliousness, anti-authoritarianism, and the spirit of nonconformity within all of us. In The First Amendment, Democracy, and Romance, Steven Shiffrin argues that romantics like Emerson have more to teach us about freedom of speech and democracy than does Justice Oliver Wendell Holmes: if the first amendment is to have a single organizing symbol, let it be the image of the dissenter. A major purpose of the first amendment, says Shiffrin, is to protect those who would break out of orthodox forms.

Although the Emersonian ideal of freedom of speech has deep roots in the nation's culture, it has been subtly denigrated in recent first-amendment theory and seriously abused in practice. Yet Shiffrin believes that the first amendment can provide a sensible accommodation among a host of conflicting values in a changing world, and can also stand as a national symbol—in short, it can allow for both social construction and romance.

Blending insights from literature, philosophy, political science, history, rhetoric, and law, Shiffrin maintains that the romantic tradition sheds light not only on a range of free-speech issues, such as libel, flag burning, and the commercialization of the mass media, but also on subjects of broader theoretical controversy, including liberalism, pragmatism, and the republican revival. In addition to its original approach to the law, this book brings new observations and fresh insights to its discussions of the role of the first amendment in American culture. It will interest a general audience as well as lawyers, journalists, and scholars in a variety of academic fields.

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First Amendment Institutions
Paul Horwitz
Harvard University Press, 2012

Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them.

Universities, the press, libraries, churches, and various other institutions and associations are a fundamental part of the infrastructure of public discourse. Rather than subject them to ill-fitting, top-down rules and legal categories, courts should make them partners in shaping public discourse and First Amendment law, giving these institutions substantial autonomy to regulate their own affairs. Self-regulation and public criticism should be the key restraints on these institutions, not judicial fiat. Horwitz suggests that this approach would help the law enhance the contribution of our “First Amendment institutions” to social and political life. It would also move us toward a conception of the state as a participating member of our social framework, rather than a reigning and often overbearing sovereign.

First Amendment Institutions offers a new vantage point from which to evaluate ongoing debates over topics ranging from campaign finance reform to campus hate speech and affirmative action in higher education. This book promises to promote—and provoke—important new discussions about the shape and future of the First Amendment.

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First Amendment Studies in Arkansas
The Richard S. Arnold Prize Essays
Stephen Smith
University of Arkansas Press, 2016

This collection of fourteen essays written by young communication scholars at the University of Arkansas presents unique insights into how First Amendment issues have played out in the state. Rather than exploring the particular legal issues and the constitutional principles enunciated by the courts, First Amendment Studies tells the stories of actual people expressing challenged or unpopular points of view and reveals the ways that constitutional controversies arise from the actions of local officials and individual citizens.

Drawing on public documents as well as extensive interviews with participants, these essays demonstrate the dynamics of democratic dissent—on college campuses, in public schools, in churches, on the streets, in the forests and on the farms, and in legislative chambers and courtrooms.

Each essay was selected for the Richard S. Arnold Prize in First Amendment Studies, an endowed fund established in 1999 to encourage University of Arkansas graduate students in communication and the liberal arts to explore and examine questions about freedom of speech and freedom of religion.
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Free Speech and Koch Money
Manufacturing a Campus Culture War
Ralph Wilson
Pluto Press, 2021

In recent years hundreds of high-profile ‘free speech’ incidents have rocked US college campuses. Milo Yiannopoulos, Ben Shapiro, Ann Coulter and other right-wing speakers have faced considerable protest, with many being disinvited from speaking. These incidents are widely circulated as examples of the academy’s intolerance towards conservative views.

But this response is not the spontaneous outrage of the liberal colleges. There is a darker element manufacturing the crisis, funded by political operatives, and designed to achieve specific political outcomes. If you follow the money, at the heart of the issue lies the infamous and ultra-libertarian Koch donor network.

Grooming extremist celebrities, funding media platforms that promote these controversies, developing legal organzations to sue universities and corrupting legislators, the influence of the Koch network runs deep. We need to abandon the ‘campus free speech’ narrative and instead follow the money if we ever want to root out this dangerous network from our universities.

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Free Speech On Trial
Communication Perspectives on Landmark Supreme Court Decisions
Edited by Richard A. Parker
University of Alabama Press, 2008

Describes landmark free speech decisions of the Supreme Court while highlighting the issues of language, rhetoric, and communication that underlie them.

At the intersection of communication and First Amendment law reside two significant questions: What is the speech we ought to protect, and why should we protect it? The 20 scholars of legal communication whose essays are gathered in this volume propose various answers to these questions, but their essays share an abiding concern with a constitutional guarantee of free speech and its symbiotic relationship with communication practices.

Free Speech on Trial fills a gap between textbooks that summarize First Amendment law and books that analyze case law and legal theory. These essays explore questions regarding the significance of unregulated speech in a marketplace of goods and ideas, the limits of offensive language and obscenity as expression, the power of symbols, and consequences of restraint prior to publication versus the subsequent punishment of sources. As one example, Craig Smith cites Buckley vs. Valeo to examine how the context of corruption in the 1974 elections shaped the Court's view of the constitutionality of campaign contributions and expenditures.

Collectively, the essays in this volume suggest that the life of free speech law is communication. The contributors reveal how the Court's free speech opinions constitute discursive performances that fashion, deconstruct, and reformulate the contours and parameters of the Constitution’s guarantee of free expression and that, ultimately, reconstitute our government, our culture, and our society.

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Free Speech, The People's Darling Privilege
Struggles for Freedom of Expression in American History
Michael Kent Curtis
Duke University Press, 2000
Modern ideas about the protection of free speech in the United States did not originate in twentieth-century Supreme Court cases, as many have thought. Free Speech, “The People’s Darling Privilege” refutes this misconception by examining popular struggles for free speech that stretch back through American history. Michael Kent Curtis focuses on struggles in which ordinary and extraordinary people, men and women, black and white, demanded and fought for freedom of speech during the period from 1791—when the Bill of Rights and its First Amendment bound only the federal government to protect free expression—to 1868, when the Fourteenth Amendment sought to extend this mandate to the states. A review chapter is also included to bring the story up to date.
Curtis analyzes three crucial political struggles: the controversy that surrounded the 1798 Sedition Act, which raised the question of whether criticism of elected officials would be protected speech; the battle against slavery, which raised the question of whether Americans would be free to criticize a great moral, social, and political evil; and the controversy over anti-war speech during the Civil War. Many speech issues raised by these controversies were ultimately decided outside the judicial arena—in Congress, in state legislatures, and, perhaps most importantly, in public discussion and debate. Curtis maintains that modern proposals for changing free speech doctrine can usefully be examined in the light of this often ignored history. This broader history shows the crucial effect that politicians, activists, ordinary citizens—and later the courts—have had on the American understanding of free speech.
Filling a gap in legal history, this enlightening, richly researched historical investigation will be valuable for students and scholars of law, U.S. history, and political science, as well as for general readers interested in civil liberties and free speech.
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Freedom and Tenure in the Academy
William W. Van Alstyne, ed.
Duke University Press, 1993
Questions of academic freedom--from hate speech to the tenure structure—continue to be of great urgency and perennial debate in American higher education. Originally published as a special issue of Law and Contemporary Problems (Summer 1990), this volume draws together leading scholars of law, philosophy, and higher education to offer a fresh assessment of the founding principles of academic freedom and to define this crucial topic for the 1990s.
The original 1940 Statement of Principles on Academic Freedom and Tenure, which has been influential in determining institutional practices for the last half century, has required continual redefinition since its initial declaration. The volume begins with two overview articles: the most complete examination of the 1940 Statement ever provided (shedding light on some of its most troublesome clauses) and a historical review of the extent to which academic freedom has been accepted into domestic constitutional law. Subsequent articles address a range of issues related to academic freedom: the relationship between tenure and academic freedom; tenure and labor law; ideology and faculty selection; freedom of expression and the arts on campus; the boundaries defining hate speech and offensive expression; the clash between institutional and individual claims of academic freedom; and the practices of religious colleges in the United States.

Contributors. Ralph S. Brown, Matthew W. Finkin, Jordan E. Kurland, Michael W. McConnell, Walter P. Metzger, Robert M. O'Neil, David M. Rabban, Rodney A, Smolla, Janet Sinder, Judith Jarvis Thomson, William W. Van Alstyne

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Freedom of Expression
Archibald Cox
Harvard University Press, 1981

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The Harm in Hate Speech
Jeremy Waldron
Harvard University Press, 2012

Every liberal democracy has laws or codes against hate speech—except the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities.

Causing offense—by depicting a religious leader as a terrorist in a newspaper cartoon, for example—is not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home.

Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful speech.

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How Free Can the Press Be?
Randall P. Bezanson
University of Illinois Press, 2003
Randall P. Bezanson explores the contradictions embedded in understanding press freedom in America by discussing nine of the most pivotal and provocative First Amendment cases in US judicial history. Each case resulted in a ruling that refined or reshaped judicial definition of the limits of press freedom.

The cases concerned matters ranging from The New York Times's publication of the Pentagon Papers to Hugo Zacchini's claim that TV broadcasts of his human cannonball act threatened his livelihood. Bezanson also examines the case of politician blackballed by the Miami Herald; the Pittsburgh Press's argument that it had the right to use gender based column headings in its classifieds; and a crime victim suing the Des Moines Register over the paper's publication of intimate details, including the victim's name.

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How Machines Came to Speak
Media Technologies and Freedom of Speech
Jennifer Petersen
Duke University Press, 2022
In How Machines Came to Speak Jennifer Petersen constructs a genealogy of how legal conceptions of “speech” have transformed over the last century in response to new media technologies. Drawing on media and legal history, Petersen shows that the legal category of speech has varied considerably, evolving from a narrow category of oratory and print publication to a broad, abstract conception encompassing expressive nonverbal actions, algorithms, and data. She examines a series of pivotal US court cases in which new media technologies—such as phonographs, radio, film, and computer code—were integral to this shift. In judicial decisions ranging from the determination that silent films were not a form of speech to the expansion of speech rights to include algorithmic outputs, courts understood speech as mediated through technology. Speech thus became disarticulated from individual speakers. By outlining how legal definitions of speech are indelibly dependent on technology, Petersen demonstrates that future innovations such as artificial intelligence will continue to restructure speech law in ways that threaten to protect corporate and institutional forms of speech over the rights and interests of citizens.
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The Idea of a Free Press
The Enlightenment and Its Unruly Legacy
David Copeland
Northwestern University Press, 2006
With the introduction of the printing press in England in 1476, a struggle over its control--and its potential for interrupting power--was joined. The written word, once the domain of the upper levels of society that controlled politics, economics, and religion, could be seen passing into the hands of anyone throughout the social strata who wished to voice opinions on any topic of interest or importance. How the advent of printing led to the idea of a free press is the story told by David Copeland in this book, which traces a confrontation that began with issues of religion and gradually expanded into the realm of political freedom.

The rise of a free press was, in many ways, a legacy of the Reformation and Enlightenment. Copeland describes a discourse centered on questions of religion--a discussion that the government, with all its religious authority, could not suppress because of the belief that the ability to reason for oneself was God-given. In this account we see how the debate moved from religion to the purely political sphere, and how, through the increased use of the printing press, it was opened to a multiplicity of voices and opinions. Spanning nearly four centuries in Britain and America, Copeland's book reveals how the tension between government control and the right to debate public affairs openly ultimately led to the idea of a free press; in doing so, it documents an intellectual development of unparalleled relevance and importance to the history of journalism.
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Images of a Free Press
Lee C. Bollinger
University of Chicago Press, 1991
Rich in historical detail, Images of a Free Press is an elegant, powerful guide to the evolution of our modern conception of freedom of the press, which finds expression in laws that protect print journalism and regulate broadcast media. Bollinger argues that this distinction remains meaningful but he advocates a more sophisticated approach to issues of privacy, access, and technology. Providing concrete guidelines for improving media laws, Images of a Free Press is a vital First Amendment primer for lawyers, media professionals, and critics, and all concerned citizens.

"Images of a Free Press is the natural sequel to Lee Bollinger's first book, The Tolerant Society, and is destined to become a standard in first amendment scholarship."—Rodney A. Smolla, Constitutional Commentary

"Revisiting themes he first explored some fifteen years ago, Bollinger now adds further to our understanding of the complex relationship among the First Amendment, the Supreme Court, the public, the press and the democratic process. This is a work of insight, sensitivity, and power. Bollinger has a profound knowledge of and a deep affection for his subject, and it shows."—Geoffrey R. Stone, Michigan Law Review

"This thoughtful, understated book remains a call to come join the town meeting and hammer out some new rules of order. Scholars and citizens alike could do well to read Bollinger's book and accept his challenge."—Yale Law Review

"For a number of years, Lee Bollinger has argued that the First Amendment has been applied differently to the print media than it has been to the broadcast media. In his new book, Images of a Free Press, Bollinger provides a concise, persuasive account of why this is so—and why it ought to be so."—Columbia Law Review
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In Contempt
Defending Free Speech, Defeating HUAC
Ed Yellin and Jean Fagan Yellin
University of Michigan Press, 2022
“YOU ARE HEREBY COMMANDED to be and appear before the Committee on Un-American Activities of the House of Representatives of the United States, or a duly appointed subcommittee thereof, on February 10 (Monday), 1958, at ten o’clock a.m. at City Council Chambers, City Hall, Gary, Indiana, then and there to testify touching matters of inquiry committed to said committee, and not to depart without leave of said committee.”

So began a decade of hardship for Ed and Jean Yellin and their three young children as the repressive weight of the U.S. government, caught up in the throes of McCarthyism, crashed down upon their careers, their daily household budget, and their relationships to colleagues, neighbors, and their country. In Contempt is a faithful, factual testament to the enduring quality of patriotic dissent in our evolving democracy—and a loving reconstruction of what it meant to be labeled “unAmerican” for defending the Constitution.
 
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In Defense of Free Speech in Universities
A Study of Three Jurisdictions
Amy Lai
University of Michigan Press, 2023

In this book, Amy Lai examines the current free speech crisis in Western universities. She studies the origin, history, and importance of freedom of speech in the university setting, and addresses the relevance and pitfalls of political correctness and microaggressions on campuses, where laws on harassment, discrimination, and hate speech are already in place, along with other concepts that have gained currency in the free speech debate, including deplatforming, trigger warning, and safe space. Looking at numerous free speech disputes in the United Kingdom, the United States, and Canada, the book argues for the equal application of the free speech principle to all expressions to facilitate respectful debates. All in all, it affirms that the right to free expression is a natural right essential to the pursuit of truth, democratic governance, and self-development, and this right is nowhere more important than in the university.

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An Indispensable Liberty
The Fight for Free Speech in Nineteenth-Century America
Edited by Mary M. Cronin
Southern Illinois University Press, 2016
Most Americans today view freedom of speech as a bedrock of all other liberties, a defining feature of American citizenship. During the nineteenth century, the popular concept of American freedom of speech was still being formed. In An Indispensable Liberty: The Fight for Free Speech in Nineteenth-Century America, contributors examine attempts to restrict freedom of speech and the press during and after the Civil War.
 
The eleven essays that make up this collection show how, despite judicial, political, and public proclamations of support for freedom of expression, factors like tradition, gender stereotypes, religion, and fear of social unrest often led to narrow judicial and political protection for freedom of expression by people whose views upset the status quo. These views, expressed by abolitionists, suffragists, and labor leaders, challenged rigid cultural mores of the day, and many political and cultural leaders feared that extending freedom of expression to agitators would undermine society. The Civil War intensified questions about the duties and privileges of citizenship. After the war, key conflicts over freedom of expression were triggered by Reconstruction, suffrage, the Comstock Act, and questions about libel.
 
The volume’s contributors blend social, cultural, and intellectual history to untangle the complicated strands of nineteenth-century legal thought. By chronicling the development of modern-day notions of free speech, this timely collection offers both a valuable exploration of the First Amendment in nineteenth-century America and a useful perspective on the challenges we face today.
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The Irony of Free Speech
Owen Fiss
Harvard University Press, 1996

How free is the speech of someone who can't be heard? Not very--and this, Owen Fiss suggests, is where the First Amendment comes in. In this book, a marvel of conciseness and eloquence, Fiss reframes the debate over free speech to reflect the First Amendment's role in ensuring public debate that is, in Justice William Brennan's words, truly "uninhibited, robust, and wide-open."

Hate speech, pornography, campaign spending, funding for the arts: the heated, often overheated, struggle over these issues generally pits liberty, as embodied in the First Amendment, against equality, as in the Fourteenth. Fiss presents a democratic view of the First Amendment that transcends this opposition. If equal participation is a precondition of free and open public debate, then the First Amendment encompasses the values of both equality and liberty.

By examining the silencing effects of speech--its power to overwhelm and intimidate the underfunded, underrepresented, or disadvantaged voice--Fiss shows how restrictions on political expenditures, hate speech, and pornography can be defended in terms of the First Amendment, not despite it. Similarly, when the state requires the media to air voices of opposition, or funds art that presents controversial or challenging points of view, it is doing its constitutional part to protect democratic self-rule from the aggregations of private power that threaten it.

Where most liberal accounts cast the state as the enemy of freedom and the First Amendment as a restraint, this one reminds us that the state can also be the friend of freedom, protecting and fostering speech that might otherwise die unheard, depriving our democracy of the full range and richness of its expression.

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Judicial Rhapsodies
Rhetoric and Fundamental Rights in the Supreme Court
Doug Coulson
Amherst College Press, 2023
All judges legitimize their decisions in writing, but US Supreme Court justices depend on public acceptance to a unique degree. Previous studies of judicial opinions have explored rhetorical strategies that produce legitimacy, but none have examined the laudatory, even operatic, forms of writing Supreme Court justices have used to justify fundamental rights decisions. Doug Coulson demonstrates that such “judicial rhapsodies” are not an aberration but a central feature of judicial discourse.

First examining the classical origins of divisions between law and rhetoric, Coulson tracks what he calls an epideictic register—highly affective forms of expression that utilize hyperbole, amplification, and vocabularies of praise—through a surprising number of landmark Supreme Court opinions. Judicial Rhapsodies recovers and revalues these instances as significant to establishing and maintaining shared perspectives that form the basis for common experience and cooperation.

“Judicial Rhapsodies is both compelling and important. Coulson brings his well-developed knowledge of rhetoric to bear on one of the most central (and most democratically fraught) means of governance in the United States: the Supreme Court opinion. He demonstrates that the epideictic, far from being a dispensable or detestable element of judicial rhetoric, is an essential feature of how the Court operates and seeks to persuade.” —Keith Bybee, Syracuse University
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Liberal Democracy and the Limits of Tolerance
Essays in Honor and Memory of Yitzhak Rabin
Raphael Cohen-Almagor, Editor
University of Michigan Press, 2000
An irony inherent in all political systems is that the principles that underlie and characterize them can also endanger and destroy them. This collection examines the limits that need to be imposed on democracy, liberty, and tolerance in order to ensure the survival of the societies that cherish them. The essays in this volume consider the philosophical difficulties inherent in the concepts of liberty and tolerance; at the same time, they ponder practical problems arising from the tensions between the forces of democracy and the destructive elements that take advantage of liberty to bring harm that undermines democracy.
Written in the wake of the assasination of Yitzhak Rabin, this volume is thus dedicated to the question of boundaries: how should democracies cope with antidemocratic forces that challenge its system? How should we respond to threats that undermine democracy and at the same time retain our values and maintain our commitment to democracy and to its underlying values?
All the essays here share a belief in the urgency of the need to tackle and find adequate answers to radicalism and political extremism. They cover such topics as the dilemmas embodied in the notion of tolerance, including the cost and regulation of free speech; incitement as distinct from advocacy; the challenge of religious extremism to liberal democracy; the problematics of hate speech; free communication, freedom of the media, and especially the relationships between media and terrorism.
The contributors to this volume are David E. Boeyink, Harvey Chisick, Irwin Cotler, David Feldman, Owen Fiss, David Goldberg, J. Michael Jaffe, Edmund B. Lambeth, Sam Lehman-Wilzig, Joseph Eliot Magnet, Richard Moon, Frederick Schauer, and L.W. Sumner. The volume includes the opening remarks of Mrs.Yitzhak Rabin to the conference--dedicated to the late Yitzhak Rabin--at which these papers were originally presented. These studies will appeal to politicians, sociologists, media educators and professionals, jurists and lawyers, as well as the general public.
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Liberal Suppression
Section 501(c)(3) and the Taxation of Speech
Philip Hamburger
University of Chicago Press, 2018
In the course of exempting religious, educational, and charitable organizations from federal income tax, section 501(c)(3) of the Internal Revenue Code requires them to refrain from campaign speech and much speech to influence legislation. These speech restrictions have seemed merely technical adjustments, which prevent the political use of a tax subsidy. But the cultural and legal realities are more disturbing.

Tracing the history of American liberalism, including theological liberalism and its expression in nativism, Hamburger shows the centrality of turbulent popular anxieties about the Catholic Church and other potentially orthodox institutions. He argues persuasively that such theopolitical fears about the political speech of churches and related organizations underlay the adoption, in 1934 and 1954, of section 501(c)(3)’s speech limits. He thereby shows that the speech restrictions have been part of a broad majority assault on minority rights and that they are grossly unconstitutional.

Along the way, Hamburger explores the role of the Ku Klux Klan and other nativist organizations, the development of American theology, and the cultural foundations of liberal “democratic” political theory. He also traces important legal developments such as the specialization of speech rights and the use of law to homogenize beliefs. Ultimately, he examines a wide range of contemporary speech restrictions and the growing shallowness of public life in America.
His account is an unflinching look at the complex history of American liberalism and at the implications for speech, the diversity of belief, and the nation’s future.
 
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Mere Civility
Disagreement and the Limits of Toleration
Teresa M. Bejan
Harvard University Press, 2017

A New Statesman Best Book of the Year
A Church Times Book of the Year

We are facing a crisis of civility, a war of words polluting our public sphere. In liberal democracies committed to tolerating active, often heated disagreement, the loss of this virtue appears critical.

Most modern appeals to civility follow arguments by Hobbes or Locke by proposing to suppress disagreement or exclude views we deem “uncivil” for the sake of social harmony. By comparison, mere civility—a grudging conformity to norms of respectful behavior—as defended by Rhode Island’s founder, Roger Williams, might seem minimal and unappealing. Yet Teresa Bejan argues that Williams’s outlook offers a promising path forward in confronting our own crisis, one that challenges our fundamental assumptions about what a tolerant—and civil—society should look like.

“Penetrating and sophisticated.”
—James Ryerson, New York Times Book Review

“Would that more of us might learn to look into the past with such gravity and humility. We might end up with a more (or mere) civil society, yet.”
Los Angeles Review of Books

“A deeply admirable book: original, persuasive, witty, and eloquent.”
—Jacob T. Levy, Review of Politics

“A terrific book—learned, vigorous, and challenging.”
—Alison McQueen, Stanford University

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Mr. Justice Black and His Critics
Tinsley E. Yarbrough
Duke University Press, 1988
Many jurists give lip service to the idea that judicial interpretation of constitutional provisions should be based on the intent of the framers. Few, if any, have been as faithful to that conception as Hugo Black. As U.S. senator from Alabama, Black was a vigorous critic of the Supreme Court's use of the Constitution as a weapon against the Roosevelt New Deal. Once on the court he played a leading role in overturning those decisions and in attempting to establish for freedom of speech and other guarantees the interpretation he (and others) believe was warranted by the language and intent of the framers.
Late in his career, however, Black's commitment to literalism and intent led him to assume apparently conservative positions in civil liberties cases. In an era characterized by growing acceptance of the belief that judges should adapt the Constitution to changing social and ethical perceptions, many came to regard Black's position as unrealistic and irrelevant.
Tinsley E. Yarbrough analyzes Black's judicial and constitutional philosophy, as well as his approach to specific cases, through the eyes of Black's critics (such as Justices Frankfurter and Harlan) and through an assessment of scholarly opinion of his jurisprudence. The result is a stimulating and provocative addition to the study of Justice Black and the Supreme Court.
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Only Words
Catharine A. MacKinnon
Harvard University Press, 1996
When is rape not a crime? When it's pornography--or so First Amendment law seems to say: in film, a rape becomes "free speech." Pornography, Catharine MacKinnon contends, is neither speech nor free. Pornography, racial and sexual harassment, and hate speech are acts of intimidation, subordination, terrorism, and discrimination, and should be legally treated as such. Only Words is a powerful indictment of a legal system at odds with itself, its First Amendment promoting the very inequalities its Fourteenth Amendment is supposed to end. In the bold and compelling style that has made her one of our most provocative legal critics, MacKinnon depicts a society caught in a vicious hypocrisy. Words that offer bribes or fix prices or segregate facilities are treated by law as acts, but words and pictures that victimize and target on the basis of race and sex are not. Pornography--an act of sexual domination reproduced in the viewing--is protected by law in the name of "the free and open exchange of ideas." But the proper concern of law, MacKinnon says, is not what speech says, but what it does. What the "speech" of pornography and of racial and sexual harassment and hate propaganda does is promote and enact the power of one social group over another. Cutting with surgical deftness through cases of harassment in the workplace and on college campuses, through First Amendment cases involving Nazis, Klansmen, and pornographers, MacKinnon shows that as long as discriminatory practices are protected as free speech, equality will be only a word.
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Outlawing Genocide Denial
The Dilemmas of Official Historical Truth
Guenter Lewy
University of Utah Press, 2014
Historian and political scientist Guenter Lewy is no stranger to the topic of genocide nor to exploring controversial issues. His penchant for approaching topics from contentious angles continues in Outlawing Genocide Denial, as he scrutinizes the practice of criminalizing genocide denial.
 
Holocaust denial can be viewed as another form of hatred against the Jews and preventing it can be understood as a form of warding off hate speech. Germany has made it a crime punishable by law. Other European countries have similar laws. While the rationale for such laws seems reasonable, Lewy asks readers to look again and to consider carefully the dangers that these laws could present. His discussion neither dismisses the ramifications of genocide denial nor justifies it; he instead looks closely at the possible risks of government-enforced interpretations of history.
 
Outlawing genocide denial sets a precedent of allowing governments to dictate historical truth and how events should be interpreted. Such government restrictions can be counterproductive in a democratic society which values freedom of speech. Lewy examines these and related ideas through the analysis of historical and current examples. He posits his own conclusion but leaves it up to readers to view the evidence and arguments and form their own opinions.
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Pornography and the Justices
The Supreme Court and the Intractable Obscenity Problem
Richard F. Hixson
Southern Illinois University Press, 1996

Discussing Supreme Court decisions regarding obscenity, Richard F. Hixson highlights the views of Justices William J. Brennan and John Paul Stevens, borrows from the pioneer decisions of Judge Learned Hand, and consults the work of contemporary First Amendment scholars; finally, though, he relies not on public debate or political machinations but on the justices’ own published opinions, which are, as he says, "the most tantalizing documents of all."

Hixson proceeds chronologically through eleven chapters, with each chapter featuring a specific aspect of the constitutional problem and the approach or solution espoused by a particular justice. Through his case-by-case analysis of the many Supreme Court obscenity rulings, Hixson relates each decision to the temper of the times.

In this investigation of the Supreme Court’s dealings with obscenity, Hixson asks—and answers in detail—a series of pertinent questions. Do Congressional politics and public opinion prejudice the Court’s ability to interpret the Constitution fairly? Must adults be treated the same as children? What are the limits, if any, of "content restriction" on obscene materials? How much "expressive activity" is, or should be, protected by the First Amendment? Does pornography discriminate against women? How protective of the individual can the Supreme Court be and, at the same time, allow as many voices as possible to be heard?

Pornography and the Justices differs from other studies of pornography in its unique focus and its fresh conclusion, which is a composite of views garnered from the Supreme Court justices. As long as there is ample protection of minors and nonconsenting adults, Hixson argues, obscenity should be up to the individual. Separating himself from others who have discussed the issue, Hixson contends that the freedom to speak is as important as the freedom to be heard: it is essential to be able to speak whether or not anyone is listening.

For Hixson, the clear trajectory of Supreme Court opinions implies that the freedom to purchase obscene pornographic matter should be restricted only by time, place, and manner considerations. If a person wants pornography, he or she should be able to get it, albeit perhaps from a higher shelf, in a secluded room, or at a theater clearly marked for adults.

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Religious Expression and the American Constitution
Franklyn S. Haiman
Michigan State University Press, 2003

First Amendment rights have been among the most fiercely debated topics in the aftermath of 9/11. In the current environment and fervor for “homeland security,” personal freedoms in exchange for security are coming under more scrutiny. Among these guaranteed freedoms are the protection of religious expression given by the U.S. Constitution and the constitutional prohibitions against behaviors that violate the separation of church and state. The mandate that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” is a general principle that has guided American courts in interpreting the original intent of the First Amendment. In Religious Expression and the American Constitution, Haiman focuses on the current state of American law with respect to a broad range of controversial issues affecting religious expression, both verbal and nonverbal, along with a review of the recent history of each issue to provide a full understanding.

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SLAPPs
Getting Sued for Speaking Out
George Pring
Temple University Press, 1996

In a democracy that for over 200 years has prided itself on public participation and citizen involvement in government, thousands have been and will be the targets of multi-million-dollar lawsuits. They will be sued for such "all-American" activities as circulating a petition, writing a letter to the editor, testifying at a public hearing, reporting violations of the law, filing an official complaint, lobbying for legislation, or otherwise communicating their views. Such cases, named "Strategic Lawsuits Against Public Participation," with their apropos acronym, SLAPPs, are a shocking abuse of one of our most basic political rights—the Right to Petition. So extensive and grievous is the phenomenon that Justice Nicholas Colabella remarked, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."

George W. Pring and Penelope Canan explore the full range of SLAPP stories in this first study of SLAPPs— retaliatory lawsuits by real estate developers; teachers; police; politicians; opponents of civil rights; consumers' rights; women's rights; and many others. This comprehensive book examines what happens to the targets of SLAPPs and what is happening to public participation in American politics. Addressing the ultimate dilemma—what can be done to turn the tables and fight back—Pring and Canan offer concrete, well-supported, balanced solutions for preventing, managing, and curing SLAPPs at all levels of government.

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Soapbox Rebellion
The Hobo Orator Union and the Free Speech Fights of the Industrial Workers of the World, 1909-1916
Matthew S. May
University of Alabama Press, 2013
Soapbox Rebellion, a new critical history of the free speech fights of the Industrial Workers of the World (IWW), illustrates how the lively and colorful soapbox culture of the “Wobblies” generated novel forms of class struggle.
 
From 1909 to 1916, thousands of IWW members engaged in dozens of fights for freedom of speech throughout the American West. The volatile spread and circulation of hobo agitation during these fights amounted to nothing less than a soapbox rebellion in which public speech became the principal site of the struggle of the few to exploit the many. While the fights were not always successful, they did produce a novel form of fluid union organization that offers historians, labor activists, and social movement scholars a window into an alternative approach to what it means to belong to a union. Matthew May coins the phrase “Hobo Orator Union” to characterize these collectives.
 
Soapbox Rebellion highlights the methodological obstacles to recovering a workers’ history of public address; closely analyzes the impact of hobo oratorical performances; and discusses the implications of the Wobblies’ free speech fights for understanding grassroots resistance and class struggle today—in an era of the decline of the institutional business union model and workplace contractualism.
 
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Speak No Evil
The Triumph of Hate Speech Regulation
Jon B. Gould
University of Chicago Press, 2005
Opponents of speech codes often argue that liberal academics use the codes to advance an agenda of political correctness. But Jon B. Gould's provocative book, based on an enormous amount of empirical evidence, reveals that the real reasons for their growth are to be found in the pragmatic, almost utilitarian, considerations of college administrators. Instituting hate speech policy, he shows, was often a symbolic response taken by university leaders to reassure campus constituencies of their commitment against intolerance. In an academic version of "keeping up with the Joneses," some schools created hate speech codes to remain within what they saw as the mainstream of higher education. Only a relatively small number of colleges crafted codes out of deep commitment to their merits.

Although college speech codes have been overturned by the courts, Speak No Evil argues that their rise has still had a profound influence on curtailing speech in other institutions such as the media and has also shaped mass opinion and common understandings of constitutional norms. Ultimately, Gould contends, this kind of informal law can have just as much power as the Constitution.
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Speaking Respect, Respecting Speech
Richard L. Abel
University of Chicago Press, 1998
The feminist campaign against pornography, the furor over a racial epithet in the O. J. Simpson trial, and Iran's continuing threat to kill Salman Rushdie exemplify the intense passions aroused by hurtful speech. Richard Abel offers an original framework for understanding and attempting to resolve these pervasive and intractable conflicts. Drawing on sociological theories of symbolic politics, he views such confrontations as struggles for respect among status categories defined by nationality, religion, race, gender, sexual orientation, and physical difference. Abel convincingly exposes the inadequacies of the conventional responses to speech: absolutist civil libertarianism and enthusiastic state regulation. Instead, he argues, only apologies exchanged within the communities that construct collective identities can readjust social standing damaged by hurtful words and images. In recasting the problem in terms of equalizing cultural capital, Abel opens a new pathway through the wrongs and rights of speech.

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Speaking Up
The Unintended Costs of Free Speech in Public Schools
Anne Proffitt Dupre
Harvard University Press, 2010

Just how much freedom of speech should high school students have? Does giving children and adolescents a far-reaching right of expression, without joining it to responsibility, ultimately result in an asylum that is run by its inmates?

Since the late 1960s, the United States Supreme Court has struggled to clarify the contours of constitutionally guaranteed freedom of speech rights for students. But as this thought-provoking book contends, these court opinions have pitted students—and their litigious parents—against schools while undermining the schools’ necessary disciplinary authority.

In a clear and lively style, sprinkled with wry humor, Anne Proffitt Dupre examines the way courts have wrestled with student expression in school. These fascinating cases deal with political protest, speech codes, student newspapers, book banning in school libraries, and the long-standing struggle over school prayer. Dupre also devotes an entire chapter to teacher speech rights. In the final chapter on the 2007 “Bong Hits 4 Jesus” case, she asks what many people probably wondered: when the Supreme Court gave teenagers the right to wear black armbands in school to protest the Vietnam War, just how far does this right go? Did the Court also give students who just wanted to provoke their principal the right to post signs advocating drug use?

Each chapter is full of insight into famous decisions and the inner workings of the courts. Speaking Up offers eye-opening history for students, teachers, lawyers, and parents seeking to understand how the law attempts to balance order and freedom in schools.

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Speech Acts and the First Amendment
Franklyn S. Haiman. Foreword by Abner J. Mikva
Southern Illinois University Press, 1993

What can a democratic society reasonably do about the perplexing problems of racial intolerance, sexual harassment, incitements to violence, and invasions of privacy? Is it possible to preserve the constitutional ideal of free expression while protecting the community from those who would trample on the rights of others?

Franklyn S. Haiman critically examines the reasoning behind recent efforts to prohibit certain forms of speech and explores the possible consequences to democracy of such moves.

Speech act theory, well known to scholars of rhetoric, communication, and language, underlies this emerging trend in judicial and legislative thinking. The idea that "words are deeds," first articulated in language philosophy by Wittgenstein and elaborated by J. L. Austin and John Searle, is being invoked by some members of the legal community to target objectionable speech. For example, speech codes on some college campuses prohibit racist, sexist, and homophobic expression, and attempts have been made through local laws to classify pornography as a form of sex discrimination. By defining certain kinds of arguably immoral symbolic behavior such as hate speech, obscenity, or portrayals of violence as acts rather than as pure speech, speech act advocates make it easier to argue that such conduct should be subject to social control through the law.

Unlike totalitarian or theocratic societies that see no difference between their concept of morality and the law, however, a democracy must make a distinction between what it regards as immoral and what it makes illegal. Haiman maintains that in the realm of symbolic behavior the line between them should be drawn as closely as possible to expression that results in the most serious, direct, immediate, and physical harm to others. Thus, he joins with former Supreme Court Justice Louis Brandeis in concluding that, absent an emergency, more speech, not enforced silence, should be the aim of a free society.

 
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Speech Rights in America
The First Amendment, Democracy, and the Media
Laura Stein
University of Illinois Press, 2005

The First Amendment is the principle guarantor of speech rights in the United States. But the Supreme Court's interpretations of it often privilege the interests of media owners over those of the broader citizenry. 

Laura Stein argues that such rulings alienate citizens from their rights, corrupt the essential workings of democracy, and prevent the First Amendment from performing its critical role as a protector of free speech. Drawing on the best of the liberal democratic tradition, Stein demonstrates that there is a significant gap between First Amendment law and the speech rights necessary to democratic communication, and proposes an alternative set of principles to guide future judicial, legislative, and cultural policy on old and new media.

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The Springs of Liberty
The Satiric Tradition and Freedom of Speech
Stewart Justman
Northwestern University Press, 1999
The Springs of Liberty takes up questions of literary history and theory and explores sources of power harnessed by modern political doctrines and the journalism that conveys them to the public. These forces of opinion are traced to a tradition deeper and older than either: satire. In that tradition—its power, diversity, and license—the author locates the spirit of free speech.
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Studies into Darkness
The Perils and Promise of Freedom of Speech
Edited by Carin Kuoni and Laura Raicovich
Amherst College Press, 2022
There have been few times in US American history when the very concept of freedom of speech—its promise and its contradictions—has been under greater scrutiny. Guided by acclaimed artist, filmmaker, and activist Amar Kanwar, the Vera List Center for Art and Politics at The New School convened a series of public seminars on freedom of speech with the participation of some of the most original thinkers and artists on the topic. Structured as an open curriculum, each seminar examined a particular aspect of freedom of speech, reflecting on and informed by recent debates around hate speech, censorship, sexism, and racism in the US and elsewhere. Studies into Darkness emerges from these seminars as a collection of newly commissioned texts, artist projects, and resources that delve into the intricacies of free speech. Providing a practical and historical guide to free speech discourse and in-depth investigations that extend far beyond the current moment, and featuring poetic responses to the crises present in contemporary culture and society around expression, this publication provocatively questions whether true communication is ever attainable.

Contributions by Zach Blas, Mark Bray, Natalie Diaz, Aruna D’Souza, Silvia Federici and Gabriela López Dena, Jeanne van Heeswijk, shawné michaelain holloway, Prathibha Kanakamedala and Obden Mondésir, Amar Kanwar, Carin Kuoni, Lyndon, Debora, and Abou, Svetlana Mintcheva, Mendi + Keith Obadike, Vanessa Place, Laura Raicovich, Michael Rakowitz, Kameelah Janan Rasheed, and Nabiha Syed.
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The Taming of Free Speech
America’s Civil Liberties Compromise
Laura Weinrib
Harvard University Press, 2016

In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy.

The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence—often understood as a triumph for the Left—was in fact a calculated bargain.

America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.

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Teaching Banned Books
12 Guides for Young Readers
Pat R. Scales
American Library Association, 2001

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Teaching Banned Books
32 Guides For Children And Teens
Pat R. Scales
American Library Association, 2019

As standard-bearers for intellectual freedom, school and children’s librarians are in ideal positions to collaborate with educators to not only protect the freedom to read but also ensure that valued books which touch upon important topics are not quarantined from the readers for whom they were written. In this best-selling classroom- and library-ready book of discussion guides, thoroughly updated and expanded to include genres such as graphic novels and nonfiction, award-winning champion of children's literature Scales shows that there is a way to teach these books while respecting all views. Also freshened to include only books that are in print, this resource

  • reprints Judy Blume's stirring introduction from the first edition;
  • aids educators and librarians in stimulating the critical thinking skills of young readers aged 9-18 while also encouraging freedom of thought and expression, in either classroom or book club settings;
  • spotlights titles dealing with sensitive but vital issues such as bullying, racism, bigotry, making tough choices, other cultures, and our uncertain future;
  • offers tips for introducing each book and its associated topics;
  • provides open-ended questions for discussion which explore the book as a whole rather than simply its "controversial" aspects, along with research and writing activities; and
  • includes short summaries of each book, plus a read-alikes section to keep the conversation going.
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Technologies of Freedom
Ithiel de Sola Pool
Harvard University Press, 1983
How can we preserve free speech in an electronic age? In a masterly synthesis of history, law, and technology, Ithiel de Sola Pool analyzes the confrontation between the regulators of the new communications technology and the First Amendment.
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Too Much Free Speech?
Randall P. Bezanson
University of Illinois Press, 2012
Randall P. Bezanson takes up an essential and timely inquiry into the Constitutional limits of the Supreme Court's power to create, interpret, and enforce one of the essential rights of American citizens. Analyzing contemporary Supreme Court decisions from the past fifteen years, Bezanson argues that judicial interpretations have fundamentally and drastically expanded the meaning and understanding of "speech."
 
Bezanson focuses on judgments such as the much-discussed Citizens United case, which granted the full measure of constitutional protection to speech by corporations, and the Doe vs. Reed case in Washington state, which recognized the signing of petitions and voting in elections as acts of free speech. In each case study, he questions whether the meaning of speech has been expanded too far and critically assesses the Supreme Court's methodology in reaching and explaining its expansive conclusions.
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Unsafe for Democracy
World War I and the U.S. Justice Department's Covert Campaign to Suppress Dissent
William H. Thomas Jr.
University of Wisconsin Press, 2009
During World War I it was the task of the U.S. Department of Justice, using the newly passed Espionage Act and its later Sedition Act amendment, to prosecute and convict those who opposed America’s entry into the conflict. In Unsafe for Democracy, historian William H. Thomas Jr. shows that the Justice Department did not stop at this official charge but went much further—paying cautionary visits to suspected dissenters, pressuring them to express support of the war effort, or intimidating them into silence. At times going undercover, investigators tried to elicit the unguarded comments of individuals believed to be a threat to the prevailing social order.
    In this massive yet largely secret campaign, agents cast their net wide, targeting isolationists, pacifists, immigrants, socialists, labor organizers, African Americans, and clergymen. The unemployed, the mentally ill, college students, schoolteachers, even schoolchildren, all might come under scrutiny, often in the context of the most trivial and benign activities of daily life.
    Delving into numerous reports by Justice Department detectives, Thomas documents how, in case after case, they used threats and warnings to frighten war critics and silence dissent. This early government crusade for wartime ideological conformity, Thomas argues, marks one of the more dubious achievements of the Progressive Era—and a development that resonates in the present day.

Best Books for Special Interests, selected by the American Association of School Librarians

“Recommended for all libraries.”—Frederic Krome, Library Journal

“A cautionary tale about what can happen to our freedoms if we take them too lightly.”—Dave Wood, Hudson Star-Observer
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Versions of Academic Freedom
From Professionalism to Revolution
Stanley Fish
University of Chicago Press, 2014
Through his columns in the New York Times and his numerous best-selling books, Stanley Fish has established himself as our foremost public analyst of the fraught intersection of academia and politics. Here Fish for the first time turns his full attention to one of the core concepts of the contemporary academy: academic freedom.
 
Depending on who’s talking, academic freedom is an essential bulwark of democracy, an absurd fig leaf disguising liberal agendas, or, most often, some in-between muddle that both exaggerates its own importance and misunderstands its actual value to scholarship. Fish enters the fray with his typical clear-eyed, no-nonsense analysis. The crucial question, he says, is located in the phrase “academic freedom” itself: Do you emphasize “academic” or “freedom”? The former, he shows, suggests a limited, professional freedom, while the conception of freedom implied by the latter could expand almost infinitely. Guided by that distinction, Fish analyzes various arguments for the value of academic freedom: Is academic freedom a contribution to society's common good? Does it authorize professors to critique the status quo, both inside and outside the university? Does it license and even require the overturning of all received ideas and policies? Is it an engine of revolution? Are academics inherently different from other professionals? Or is academia just a job, and academic freedom merely a tool for doing that job?
 
No reader of Fish will be surprised by the deftness with which he dismantles weak arguments, corrects misconceptions, and clarifies muddy arguments. And while his conclusion—that academic freedom is simply a tool, an essential one, for doing a job—may surprise, it is unquestionably bracing. Stripping away the mystifications that obscure academic freedom allows its beneficiaries to concentrate on what they should be doing: following their intellectual interests and furthering scholarship.
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When Freedom Speaks
The Boundaries and the Boundlessness of Our First Amendment Right
Lynn Greenky
Brandeis University Press, 2022
This book makes first amendment issues immediate and contemporary.
 

When Freedom Speaks chronicles the stories behind our First Amendment right to speak our minds. Lynn Levine Greenky’s background as a lawyer, rhetorician, and teacher gives her a unique perspective on the protection we have from laws that abridge our right to the freedom of speech. Rhetoricians focus on language and how it influences perception and moves people to action. Powerfully employing that rhetorical approach, this book explores concepts related to free speech as moral narratives that proscribe the boundaries of our constitutionally protected right. Using the characters and drama embedded in legal cases that elucidate First Amendment principles, When Freedom Speaks makes the concepts easier to understand and clearly applicable to our lives. With a wide range of examples and accessible language, this book is the perfect overview of the First Amendment.


 
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Workers against the City
The Fight for Free Speech in Hague v. CIO
Donald W. Rogers
University of Illinois Press, 2020
The 1939 Supreme Court decision Hague v. CIO was a constitutional milestone that strengthened the right of Americans, including labor organizers, to assemble and speak in public places. Donald W. Rogers eschews the prevailing view of the case as a morality play pitting Jersey City, New Jersey, political boss Frank Hague against the Committee for Industrial Organization (CIO) and allied civil libertarian groups. Instead, he draws on a wide range of archives and evidence to re-evaluate Hague v. CIO from the ground up. Rogers's review of the case from district court to the Supreme Court illuminates the trial proceedings and provides perspectives from both sides. As he shows, the economic, political, and legal restructuring of the 1930s refined constitutional rights as much as the court case did. The final decision also revealed that assembly and speech rights change according to how judges and lawmakers act within the circumstances of a given moment.
 
Clear-eyed and comprehensive, Workers against the City revises the view of a milestone case that continues to impact Americans' constitutional rights today.
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Zechariah Chafee, Jr.
Defender of Liberty and Law
Donald L. Smith
Harvard University Press, 1986

In 1952 Senator Joseph McCarthy included Zechariah Chafee’s name on a list of seven persons he called “dangerous to America.” How could this happen to a man whose life was filled with the quiet grace of achievement as a scholar of the law? In the first biography of this distinguished American, Donald Smith portrays Chafee as temperamentally conservative, only accidentally a defender of radicals and a civil rights advocate.

Chafee is most remembered for his contributions to First Amendment scholarship, including the classic Freedom of Speech, published in 1920 [and revised and republished in 1941 as Free Speech in the United States]. He publicly criticized the Justice Department prosecutions under the Espionage and Sedition Acts; appeared in court on behalf of Communists fighting deportation; and was president of a commission for the abolition of the death penalty. He served as vice chairman of the Commission on Freedom of the Press (the Hutchins Commission) and continued his public service when appointed to the United Nations Subcommission on Freedom of Information and of the Press.

Yet Chafee, who put his Harvard professorship in jeopardy more than once, never chose to be or perceived himself to be a controversial public figure. Preeminently a man of ideas, he spent most of his life teaching—at times applying both mathematical formulations and Greek philosophical theories to questions of law. This perceptive intellectual biography brings to life the story of a scholar caught up in the dramatic political events of his time.

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